The State v Admire Makoni and Brighton Munyiri and Peter Enock Manyuchi and McIntosh Nhawu and Tapiwa Liberty Maupa

On 25 February 2013 at Shangani Business Centre in Matabeleland South, Zimbabwe, the deceased Mandlenkosi Sibanda (27 years old) was killed during tribal violence between Ndebele-speaking and Shona-speaking groups. The deceased was brutally assaulted twice on the head with a concrete slab weighing 29.255kg. Five accused persons were originally charged, but evidence only linked two accused persons (the 4th and 5th accused - McIntosh Nhawu and Tapiwa Liberty Maupa) to the crime. The actual perpetrator who wielded the concrete slab was identified as one Dylan, who was not arrested. Both accused were part of a gang of 7-8 Shona-speaking individuals that targeted Ndebele speakers. The 5th accused appeared to be the natural leader of the group, issuing instructions to assault Ndebeles and later identifying who should be spared. After the assault, both accused continued moving with the gang looking for more victims. The post-mortem report indicated death was caused by subarachnoid haemorrhage from a blunt object to the head.

• Whether accused persons could be held criminally liable for murder when they did not deliver the fatal blow
• Whether the doctrine of common purpose/accomplice liability applied to the accused persons
• Whether the accused persons had the requisite intent for murder
• The appropriate sentence for accomplices to murder with actual intent where the crime had tribal/ethnic motivations

Both accused (4th accused McIntosh Nhawu and 5th accused Tapiwa Liberty Maupa) were found guilty of murder with actual intent. Each was sentenced to 30 years imprisonment. The charges against the other three accused persons (1st, 2nd, and 3rd accused) were apparently not proceeded with due to lack of evidence.

Where two or more people agree to commit a crime or actively associate in a joint unlawful enterprise, each will be responsible for specific criminal conduct committed by one of their number which falls within their common design. An accomplice who knows or realizes there is a real risk that an actual perpetrator intends to commit a crime, and renders any form of assistance (including material support, encouragement, or moral support) that enables, assists or encourages the perpetrator to commit the crime, is criminally liable for that crime. Continued association with a criminal gang after witnessing a murder, particularly when hunting for additional victims, constitutes sufficient participation to establish accomplice liability for murder with actual intent. The crime committed by the actual perpetrator must fall within the parameters of the group's common objective for accomplice liability to attach.

The court made strong observations condemning tribal violence, stating that "anyone who advocates tribalism is an enemy of this nation" and that "such thinking has long been thrown into the dustbin of history." The court emphasized its duty to "constantly emphasis the sacredness or sanctity of human life" wherever death occurs. The court noted that rendering moral support alone would suffice for accomplice liability. The court observed that the witness Tsungai Mapeta's credibility was "beyond reproach" because he could have easily implicated both accused in the actual assault but chose to remain truthful, and even gave credit to the 5th accused for sparing him from assault. The court commented that there must be deterrent sentences to "nib from the bud" tribal thinking and discourage those of a like mind.

This case is significant in Zimbabwean criminal law for its application of accomplice liability principles where the actual perpetrator was not before the court. It demonstrates that parties to a common unlawful enterprise can be held liable for murder even when they did not strike the fatal blow, provided they associated with the common objective and rendered support or encouragement. The case also emphasizes the courts' role in condemning tribally-motivated violence and imposing deterrent sentences for such crimes. It affirms that moral support and continued association with perpetrators after witnessing a crime can constitute sufficient participation for accomplice liability. The judgment reinforces the principle that the sanctity of human life must be protected and that tribalism will not be tolerated, requiring courts to impose substantial sentences to deter such conduct.